SREEKUMAR, S/O NADARAJAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937 CRL.A.No. 1861 of 2006 --------------------------AGAINST THE JUDGMENT IN SC 954/2004 of ADDL. SESSIONS COURT (ADHOC) III, TRIVANDRUM DATED 22-08-2006 -------- APPELLANT/ACCUSED: ------------------------- SREEKUMAR, S/O.NADARAJAN, ATTUVARAMBIL VEEDU, CHIRAPALAM T.C.58/1826, ATTUKAL WARD, MANACAUD VILLAGE THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.1861 of 2006 -----------------------------------------------Dated this the 16[th] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to₹ undergo simple imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW4, the Assistant Excise Inspector, Excise Range Office, Thiruvananthapuram, and his party were on patrol at Kalady in Manacaud Village at about 12.00 p.m. on 18-07-2001. Crl. Appeal No.1861 of 2006 -2- While so, the appellant was seen coming from the opposite side carrying a five litre jerrycan in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the 5 litre jerrycan carried by the appellant, full of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW4 then and there preparing Ext.P4 Arrest Memo. Ext.P5 is the Intimation of Arrest. The jerrycan containing the arrack was sealed and seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 reached the Excise Range Office, Thiruvananthapuram, with the appellant, contraband and the records. PW4 registered Crime No.30 of 2001 of that Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus prepared by PW4. He had produced the appellant, contraband and the records before the Judicial First Class Magistrate's Court-II, Thiruvananthapuram. Ext.P7 is the List of Property. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Crl. Appeal No.1861 of 2006 -3- Laboratory, Thiruvananthapuram. PW5, the Excise Inspector, Excise Range Office, Thiruvananthapuram, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Thiruvananthapuram. Later, it was transferred to the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P8 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had not Crl. Appeal No.1861 of 2006 -4- adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. But, this Court need not go into all those contentions for disposing of this appeal. Learned counsel for the appellant submits that PW4, the Assistant Excise Inspector, Excise Range Office, Thiruvananthapuram, was an incompetent officer to detect the offence, arrest the appellant and seize the contraband. She has relied on S.R.O. No.234 of 1967 issued by the Government of Kerala under the Abkari Act empowering various officers to act in accordance with various provisions of the Abkari Act and the rulings of this Court in **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** and in **Sasidharan v. State of Kerala (2012 (2) KLT 392)** and contended that as on 18-07-2001 the Assistant Excise Inspector was not a Crl. Appeal No.1861 of 2006 -5- competent officer to detect the offence, arrest the accused and seize the contraband as he was not a notified officer under S.R.O. No.234 of 1967. She further contends that the Assistant Excise Inspector was empowered as an Abkari Officer only as per S.R.O. No.361 of 2009 dated 08-05-2009. On a perusal of S.R.O. No.234 of 1967 and the rulings cited, this Court is satisfied that as on 18-07-2001 the Assistant Excise Inspector, Excise Range Office, Thiruvananthapuram, was not a competent officer to detect, arrest and effect seizure of the contraband as contended by the learned counsel for the appellant. Therefore, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such detection, arrest and seizure. Consequently, the court below could not have framed a charge against the appellant as it was without jurisdiction. The trial which followed after framing the charge must be treated as non est in the eye of law as it was done without jurisdiction. As the trial was conducted in this case without jurisdiction by the court below, it cannot end either in Crl. Appeal No.1861 of 2006 -6- conviction or in acquittal. The appellant was entitled to be discharged as provided under Section 227 of Cr.P.C. Therefore, the conviction and sentence passed against the appellant by the court below are liable to be set aside. The appellant is entitled to be discharged in the case. 6. In the result, the conviction and sentence passed by the court below against the appellant are set aside. The appellant is discharged. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **JUDGE** **BABU MATHEW P. JOSEPH** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.1861 of 2006 -7-